View Bills at Online Sunshine 

Issue I
October 23, 2005

Make Plans Now to Attend
FAPA's 2006 Public Policy Workshop
January 25, 2006
Click Here for Details & Registration

MESSAGE FROM RICH UNGER, PRESIDENT-ELECT
& CHAIR, LEGISLATIVE POLICY COMMITTEE

It is hard to believe that it is time for the first issue of the 2006 Legislative Reporter. It is still October 2005, 90 degrees outside and we are not yet through with the hurricane season. However, 2006 legislative activity promises to be intense and we want to keep FAPA members current so that your views, opinions and advice can be timely provided to FAPA's legislative representative, Lester Abberger, our Executive Director, Sheri Coven and FAPA's Legislative Policy Committee.

Through the efforts of Lester Abberger and Sheri Coven, FAPA has come to be the organization that both members and staff of the Florida Senate and the Florida House of Representatives rely on for expertise and guidance relative to growth management issues. This expertise and guidance derives from the collective knowledge and experience of our members. For FAPA to remain effective in educating our legislative officials, especially the Senate Committee on Community Affairs and the House Committee on Growth Management, we must continue to receive member input on the important planning issues being addressed by the Florida Legislature.

In this issue of the Legislative Reporter, you will find updates on the status of current growth management and legislative activities, especially in response to last year's passage of SB 360.  A menu of topics is provided above.  Please click on the menu items for more information.

We hope this issue of the Legislative Reporter provides an understanding of what the legislature may have in store for 2006. And please, continue to provide the Chapter with your professional views and opinions on legislative matters. Your input is critical if FAPA is to maintain its leadership role in Florida's growth management legislative matters.  Also, don't forget that one of the best ways to stay on top of this year's pressing public policy issues is to attend FAPA's 2006 Public Policy Workshop on January 25, 2006 in Tallahassee.  For more information, visit FAPA's website at http://www.floridaplanning.org.

FAPA BILL TRACKING SUMMARY

FAPA's Bill Tracking Report is posted to http://www.floridaplanning.org/legislative/.   The bill tracking report contains bills that are of interest to or would affect Florida's planning community.  It is regularly updated and posted to FAPA's website.  You may also check the status of a bill or review bill text and amendments on the Florida Legislature's website at http://www.leg.state.fl.us.  Please bookmark these sites for continued access throughout the 2006 Legislative Session. 

Due to the short length of the first Bill Tracking Report, it is included below as part of this issue.  However, because the list quickly lengthens, you will have to view it on the FAPA website in the future.  You will notice that many of the bills listed below use the phrase, "...expresses legislative intent to revise laws re..."  These are shell bills or placeholders for the issues identified in the bill titles.  At this time, there are no details available regarding the content of those bills.

SB 0008 Relating to Eminent Domain/Limitations Saunders
Eminent Domain/Limitations; provides definition; prohibits, under certain conditions, state agency, political subdivision, or corporation acting on behalf of state agency or political subdivision from taking private property through use of eminent domain; provides exemptions from prohibition. EFFECTIVE DATE: 07/01/2006. 
 
SB 0020 Relating to Eminent Domain/Private Property Jones
Eminent Domain/Private Property; constitutional amendment to provide that private economic development shall not be deemed to constitute public purpose for which private property may be taken by eminent domain. Amends s. 6, Art. X. 
 
SB 0026 Relating to Constitutional Amendment/Initiative King, Jr.
Constitutional Amendment/Initiative; constitutional amendment to require that constitutional amendment or revision proposed by initiative amend existing article of this constitution on same subject & matter, except that any proposed amendment or revision of Article X must amend or repeal existing section of that article on same subject & matter; addresses basic or fundamental right of citizen of this state, etc. Amends s. 3, Art. XI. 
 
 
HB 0031 Relating to Eminent Domain/Private Property Rice
Eminent Domain/Private Property; constitutional amendment to provide that private economic development shall not be deemed to constitute public purpose for which private property may be taken by eminent domain. Amends s. 6, Art. X. 
 
SB 0098 Relating to Hurricane Loss Mitigation Programs Alexander
Hurricane Loss Mitigation Programs; constitutional amendment to limit purposes for which Fla. Hurricane Catastrophe Fund's assets may be used, to require annual $10 million appropriation in General Appropriations Act for hurricane loss mitigation programs, to require any additional appropriation from fund for programs to be subject to three-fourths vote of membership of Legislature in separate bill or bills, etc. Amends Art. X. 
 
SB 0126 Relating to Growth Management Bennett
Growth Management; expresses legislative intent to revise laws re growth management. EFFECTIVE DATE: Upon becoming law. 
 
SB 0128 Relating to Building Codes Bennett
Building Codes; expresses legislative intent to revise laws re building codes. EFFECTIVE DATE: 07/01/2006. 
 
SB 0130 Relating to Growth Management Bennett
Growth Management; expresses legislative intent to revise laws re growth management. EFFECTIVE DATE: Upon becoming law. 
 
SB 0132 Relating to Affordable Housing Bennett
Affordable Housing; expresses legislative intent to revise laws re affordable housing. EFFECTIVE DATE: Upon becoming law. 

SB 0134 Relating to Eminent Domain Bennett
Eminent Domain; expresses legislative intent to revise laws re eminent domain. EFFECTIVE DATE: Upon becoming law. 
 
SB 0136 Relating to Affordable Housing Bennett
Affordable Housing; expresses legislative intent to revise laws re affordable housing. EFFECTIVE DATE: Upon becoming law. 
 
SB 0210 Relating to Public Transportation/User Fees Baker
Public Transportation/User Fees; requires local governments that operate public transportation systems to obtain specified percentage of cost of operating system from user fees; provides exceptions. EFFECTIVE DATE: 07/01/2006. 
 
SB 0216 Relating to Impact Fees Bennett
Impact Fees; expresses legislative intent to enact laws re impact fees. EFFECTIVE DATE: Upon becoming law. 
 
SB 0218 Relating to Impact Fees Bennett
Impact Fees; expresses legislative intent to enact laws re impact fees. EFFECTIVE DATE: Upon becoming law. 
 
SB 0226 Relating to Surplus Lands Bennett
 Surplus Lands; expresses legislative intent to enact legislation re surplus lands. EFFECTIVE DATE: Upon becoming law. 
 
HB 0261 Relating to Fla. Incentive-based Permitting Act Stansel
Fla. Incentive-based Permitting Act; creates said act; provides for Incentive-based Permitting Program; provides compliance incentives for certain environmental permitting activities; provides requirements & limitations; provides for administration by DEP; requires dept. to adopt certain rules; specifies application of said permitting program provisions; revises criteria for dept. permit issuance to conform, etc. Creates 403.0874; amends 161.041, 373.219,.413, 403.087. EFFECTIVE DATE: Upon becoming law. 

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LEGISLATIVE UPDATE

The Florida Department of Community Affairs (DCA) was asked by both the House Growth Management Committee and Senate Committee on Community Affairs to report on the implementation of SB 360.  The presentations were given to the House on September 15 and to the Senate on October 18. The presentations were conducted as a collaborative effort among DCA and the Florida Departments of Transportation, Environmental Protection and Education, referred to in the presentation as Team Growth Management.  The presentations opened with an overview of the effects of the legislation and interagency implementation, and followed with the status of specific issues, including technical assistance funding; transportation; water supply; school facilities; financial feasibility; proportionate share mitigation; fiscal impact analysis modeling; regulatory relief and regionalism.  The PowerPoint presentation given to the House is posted to http://www.dca.state.fl.us/GrowthManagement2005/housepres.pdf.  The more recent presentation given to the Senate is not yet posted, but should soon be available at http://www.dca.state.fl.us/GrowthManagement2005/. 

According to senior Senate staff, two glitch bills are expected to be filed in regard to SB 360.  One is expected to address the more traditional glitch issues, such as inconsistencies within the law created by the passage of SB 360 and unintended consequences that may need to be rectified.  The second bill is expected to be more substantive in nature and go beyond what are considered to be typical glitch issues.  In addition, the Senate Committee on Community Affairs has issued its interim report on the same subject.  See http://www.flsenate.gov/data/Publications/2006/Senate/reports/interim_reports/pdf/2006-108ca.pdf.

The Senate Committee on Community Affairs is also conducting an interim project on Land Use Board of Appeals.  This differs from the interim project conducted in 2005, which more closely mirrored FAPA's paper on the same subject.  The results of this 2006 project suggest that committee members consider transferring jurisdiction to review all land use decisions concerning comprehensive plans, plan amendments, and development orders, with the exception of development orders within an area of critical state concern, to the Department of Administrative Hearings. It further recommends that this transfer of jurisdiction be phased in over a period of two years and that the administrative law judges who will be assigned these cases be required to meet specified qualifications regarding experience, expertise, etc., and fulfill continuing education requirements. We will continue to participate in this effort and offer our assistance to Senate staff.  However, please be aware that members of FAPA's Legislative Policy Committee have expressed concerns with this proposal and fear that it may raise serious constitutional issues.  We will continue to keep you up to date on this matter.

There are two other interim reports we would like to bring to your attention.  The first was issued by the Senate Transportation Committee.  Its title is Examination of the Need for a Statewide Organization to Plan and Develop Passenger and Freight Rail Transportation.  The report recommends that the Legislature should not create an additional statewide body for rail planning and development at this time. It is posted to http://www.flsenate.gov/data/Publications/2006/Senate/reports/interim_reports/pdf/2006-147tr.pdf.  In addition, the Senate Judiciary Committee is working on an Eminent Domain interim project.  Upon completion, it will be posted to http://www.flsenate.gov/cgi-bin/View_Page.pl?File=index.html&Directory=Publications/2006/Senate/reports/interim_reports/&Tab=committees&Submenu=2 under the heading, Committee on Judiciary.

Finally, the House Select Committee to Protect Private Property Rights, appointed by House Speaker Bense in July 2005, has already held several meetings.  In a House press release, Speaker Bense issued the following statement:  "The right to own property is one of the most basic rights we enjoy as Americans...Unfortunately, due to the recent United States Supreme Court decision in the case of Kelo v. City of New London, there is concern that this most fundamental freedom may be in jeopardy. However, the Court did recognize that state legislatures can and should set clear guidelines for when eminent domain is acceptable. Therefore, the Florida House will take the appropriate steps to ensure that, in Florida, eminent domain is only asserted in situations where the public necessity and the public benefit are very clear."
 
The committee is charged with reviewing Florida's Constitution, statutes, case law and any other relevant rules or ordinances in order to recommend necessary action. We hope to address the work of this committee during FAPA's Public Policy Workshop in January.  For more information on the committee's activities, please visit http://www.myfloridahouse.gov/Sections/Committees/committeesdetail.aspx?SessionId=42&CommitteeId=2322.

We will continue to keep you up to date on the progress of the bills identified above and appraised of other legislative developments as they arise.

--Lester Abberger, FAPA Legislative Representative
--Sheri Coven, FAPA Executive Director

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CENTURY COMMISSION FOR A SUSTAINABLE FLORIDA

Senate Bill 360 called for the creation of a Century Commission for a Sustainable Florida.  Its mission is to conduct a process each year through which it envisions the future for the state and then develop and recommend policies, plans, action steps, or strategies to assist in achieving the vision.  The Commission must also continuously review and consider statutes and regulations, government processes, and societal and economic trends as it considers how all levels of government and citizens can best accommodate population growth while maintaining quality of life.  It is to serve as a repository of the best "community-building" ideas and as a source for others as they work to solve growth management challenges.  The Governor, Speaker of the House and Senate President were each given five appointments.  We are quite pleased that a member of FAPA, Charles Pattison AICP, Executive Director, 1000 Friends of Florida, was appointed by Senator Lee and equally pleased that Steve Seibert was selected by Secretary Thaddeus Cohen to be the Commission's Executive Director.  The Commission's first meeting is scheduled for November 14 in St. Petersburg.  The complete list of appointees is as follows:

Governor's Appointments
Richard Baker, Mayor of St. Petersburg (Chairman, Century Commission)
Mary McCarty, Palm Beach County Commissioner, Delray Beach
Robert Bullard, Highlands County Commissioner, Lake Placid
Kathleen Shanahan, Chief Executive Officer, WRS Engineering, Tampa
Steve Uhlfelder, Attorney, Uhlfelder & Associates, Tallahassee

Speaker's Appointments
State Representative Julio Robaina, Hialeah
Chris Corr, St. Joe Properties, Jacksonville
Gary Schraut, Real Estate, Coldwell Banker Schraut & Associates, Brooksville
Dennis Gilkey, President and CEO, The Bonita Bay Group, Bonita Springs
John LaCapra, President, Florida Ports Council, Tallahassee

President's Appointments
State Senator Mike Bennett, Bradenton
Laura Benson, Sarasota County School Board Member, Sarasota
Charles Pattison AICP, Executive Director, 1000 Friends of Florida
Charles Lee, Director of Advocacy, National Audubon Society, Maitland
Don Whyte, President, Newland Communities, Tampa

FAPA staff will closely monitor the work of this committee and will continue to provide updates as warranted.  The Committee's first report is due January, 2007. Some information is available on DCA's website at http://www.dca.state.fl.us/GrowthManagement2005/indexcc.cfm.  However, Steve Seibert is working on a more detailed website and as soon as it is available for viewing, we will provide you with the link.

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 IMPACT FEE TASK FORCE

SB 360 also created the Florida Impact Fee Review Task Force to survey the current use of impact fees as a method of financing local infrastructure and publish a report and recommendations to the Governor and the Legislature by February 1, 2006. The Legislative Committee on Intergovernmental Relations (LCIR) was directed to serve as staff to the Task Force. FAPA member, Dan DeLisi, AICP was appointed to this committee.  The other committee appointments are as follows:

Governor's Appointees
President John Delaney, University of North Florida Chairman, At-large appointee
Annetta Jenkins, Local Initiatives Support Corporation, Affordable housing advocate appointee

Senate Appointments
School Board Representative
The Honorable Tom Greer, Osceola County School District
County Commission Representative
The Honorable Jon Thaxton, Sarasota County
City Council Representative
The Honorable Rick Lott, Plant City
Development Community
Cathy Whatley, Buck and Buck Realtors
Home Building Community
David Carter, David C. Carter Consulting Engineers, LLC
Member of the Florida Senate
The Honorable Lee Constantine, District 22

House Appointments
School Board Representative
The Honorable Frank O'Reilly, Polk County Public Schools
County Commission Representative
The Honorable Robert Stewart, Pinellas County
City Council Representative
The Honorable Daniel Davis, City of Jacksonville
Development Community
Dan DeLisi, AICP The Bonita Bay Group
Home Building Community
Al Zichella, Elias Brothers Communities
Member of the Florida House of Representatives
The Honorable Larry Cretul, District 22

Department of Community Affairs Representative
Heidi Hughes, General Counsel

Future meetings will be held October 31, 2005 in Tallahassee ; November 15, 2005 in Jacksonville (if necessary); December 12, 2005 in Jacksonville and January 18, 2006 in Tallahassee. Questions should be directed to Dick Drennon of the LCIR staff at drennon.dick@leg.state.fl.us or 850-488-9627.  Additional information and resources are posted to http://fcn.state.fl.us/lcir/taskforce.html.

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 COASTAL HIGH HAZARD STUDY COMMITTEE

Governor Bush issued Executive Order 05-178 creating the Coastal High Hazard Study Committee. The committee is intended to be a forum for the identification, discussion and recommendation of enhanced land planning strategies and development standards that are consistent with protected property rights and which establish clear standards for mitigation of life, safety, community infrastructure and property hazards. More specifically, its charge is to consider, evaluate and make recommendations concerning issues of importance to the protection of coastal resources, including, but not limited to the following:

A.  The Committee shall study and recommend ecologically sound actions to protect and conserve coastal resources of high natural or habitat value and that are necessary to minimize the vulnerability of coastal communities, such as barrier islands, beaches and dunes, coastal shorelines, and coastal wetlands and floodplains.

B.  The Committee shall study and recommend methods, including use of land use planning and development standards, for balancing the risks to people, property, public health and the environment in vulnerable areas with the need for economic growth.

C.  The Committee shall study and recommend cost-effective methods for mitigating hazards to ensure public safety.

Furthermore, in consultation with other state agencies, DCA is directed to conduct several supportive assessments and studies to assist the committee in carrying out its charge.  The Executive Order and additional information are posted to http://www.dca.state.fl.us/fdcp/dcp/chhsc/index.cfm.  Although the committee's findings and recommendations are due February 1, 2006, given that its first meeting may be delayed by Hurricane Wilma, it's possible that this deadline will be extended.

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 OPPAGA'S DISTRICT BOUNDARY STUDY

SB 360 directed the Florida Legislature's Office of Program Policy Analysis and Governmental Accountability (OPPAGA) to study adjustments to the boundaries of Florida's Regional Planning Councils, Water Management Districts and Department of Transportation Districts to determine whether changing boundaries would affect coordination and communication among entities.  To date, OPPAGA has interviewed stakeholders, reviewed previous studies on regional entities, analyzed maps and collected necessary data.  Its report is due in January 2006. 

In a presentation to the House Growth Management Committee, OPPAGA staff, Larry Novey, stated that if he had to point to any one consistent suggestion regarding boundary alterations, it was that they should mirror Enterprise Florida's eight regions.  However, Mr. Novey added that based on OPPAGA's preliminary findings, boundaries do not appear to be the problem and furthermore, because most boundaries are politically established, changing them could be problematic.  Mr. Novey indicated that the concerns he and his staff heard were more about the interaction of the regional entities among themselves and with the regulated public and that it was "questionable as to whether changes to boundaries would have a significant effect on communication and coordination."  Therefore, OPPAGA will hold a workshop on November 3 in Tallahassee from 9:00 am to 12:00 pm in Room 302 of the Claude Pepper Building (111 W. Madison Street) is to try to identify commonalities on how to improve regional relationships. FAPA staff will be attending the workshop and will report on the outcome in the next issue.

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 OREGON MEASURE 37 - UNCONSTITUTIONAL

On October 14, 2005 Judge Mary James of the Marion Circuit Court in Oregon ruled that Measure 37, adopted by voters in the previous election, was unconstitutional in the case of MacPherson v. Department of Administrative Services. Judge James concluded that the law is unconstitutional because it grants special privileges and immunities, impairs the legislative body's plenary power, suspends laws, and violates the separation of powers. In addition, Judge James ruled that the law violates substantive and procedural due process guaranteed by the United States Constitution.

The litigation was brought by 1000 Friends of Oregon, Senator Hector MacPherson and other landowners and farmers. The State of Oregon defended the measure, as it was now state law. The plaintiffs had argued that Measure 37 was unconstitutional because the measure: (1) curtails the state's ability to protect the health and welfare of Oregonians, (2) grants privileges to a select class of landowners and (3) violates separation of powers by giving the legislature the authority to enforce the law, a power that is restricted to the executive branch of government. A copy of the decision can be found at 1000 Friends of Oregon's web site at http://www.friends.org/issues/press/M37/Circuit-Ruling-10-14-05.html
 
In addition, links to news articles related to this issue follow.
 
Judge declares Measure 37 unconstitutional
Land rights property compensation law was passed by voters in 2004
Associated Press, The News Review, October 14, 2005
http://www.newsreview.info/article/20051014/NEWS/51014029
 
Judge nixes Measure 37 property law
Associated Press, EastOregonian.Info, October 15, 2005
http://www.eastoregonian.info/main.asp?SectionID=13&SubSectionID=206&ArticleID=44796&TM=18600.72
 
Judge razes Measure 37 land law
Property rights - The ruling, which will be appealed, says the voter-approved law violates Oregon's constitution Laura Oppenheimer, The Oregonian, October 15, 2005
http://www.oregonlive.com/news/oregonian/index.ssf?/base/front_page/112937422680310.xml&coll=7

Court demands fairness in land-use reforms
Now that Measure 37 has been overturned by a circuit court judge,
Editorial, The Oregonian, October 15, 2005
http://www.oregonlive.com/editorials/oregonian/index.ssf?/base/editorial/112937374480310.xml&coll=7
 
Judge overturns Oregon's property compensation law
Associated Press and Journal Staff, King County Journal, October 15, 2005
http://www.kingcountyjournal.com/sited/story/html/220025
 
Marion judge overturns Measure 37
The county judge rules that the voter-passed land-use plan favors some people over others
Peter Wong, Statesman Journal, October 15, 2005
http://159.54.226.83/apps/pbcs.dll/article?AID=/20051015/STATE/510150324/1042
 
Judge Overturns Oregon Ballot Measure 37
Kathy Gill, U.S. Politics, October 15, 2005
http://uspolitics.about.com/b/a/207405.htm 

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APA'S "FROM WASHINGTON" (ABRIDGED)

SAFETEA-LU Update
The Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) have issued interim guidance for new planning, environmental and air quality provisions in SAFETEA-LU. Short summaries of key changes to the statutory requirements for planning and environmental reviews are detailed in the guidance along with information on how FHWA Division and FTA Region Offices should administer and oversee programs during the transition from TEA-21 to SAFETEA-LU. Though guidance does not carry the same binding weight as formal regulations, it does outline how federal agencies are interpreting new provisions in the law.  The interim guidance on implementation of new planning, environment, and air quality provisions in SAFETEA-LU is available at http://www.fhwa.dot.gov/hep/igslpja.htm.

Congress Considers Eminent Domain Changes
Last week the House and Senate Judiciary Committees held hearings on eminent domain.  The hearings examined both the implications of the recent U.S. Supreme Court decision in Kelo v. City of New London and proposed federal legislation aimed at dramatically limiting the use of eminent domain for economic development.  The legislation introduced by Judiciary Committee Chairman James Sensenbrenner (R-WI), H.R. 3135 - the Private Property Rights Protection Act, is the most likely vehicle for action in the House.  In the Senate, Texas Republican and member of the Judiciary Committee John Cornyn introduced S. 1313, the Protection of Homes, Small Businesses, and Private Property Act. Both measures are aimed at cutting off federal community development funding for communities that use eminent domain for economic development projects.

Columbia law professor and author of APA's amicus brief in the Kelo case, Tom Merrill testified before the Senate Committee. He outlined APA's arguments that eminent domain is a necessary tool and the recent decision does not expand its use.  Merrill also noted the necessity of a robust planning process as a safeguard against abuse. APA and others have urged Congress to carefully study the issue before taking action that may lead to unintended consequences. APA has also argued that eminent domain changes are rightly a state responsibility and should be considered in the broader context of redevelopment reform.

Endangered Species Act Reform
Last week Rep. Richard Pombo (R-CA), Chairman of the House Resources Committee and Rep. Dennis Cardoza (D-CA) introduced legislation to reform the Endangered Species Act (ESA). Their bill, H.R. 3824, "The Threatened and Endangered Species Act of 2005" contains provisions that would drastically change the original intent and protections of the 1973 ESA. The new bill would eliminate the existing federal protections for "critical habitat" and instead urge agencies to handle habitat protection through "recovery plans." As the bill reads now, lawyers and the courts will make the final decision as to whether recovery plans are enforceable, says Andrew Wetzler, endangered species expert at the Natural Resources Defense Council. The bill would also require federal compensation to private landowners who would be adversely affected by an endangered species designation. Critics of the bill hold out hope that even if the bill passes the House, it will not gain the 60 votes needed for passage in the Senate.

Congress Gears Up Katrina Response 
The House and Senate have both passed, and continue to introduce, legislation aimed at relief for coastal states affected by Hurricane Katrina. Congress has already provided $62.3 billion in emergency relief through two supplemental spending bills, while last week Reps. Jim McCrery (R-LA) and William Jefferson (D-LA) helped to secure an additional $6.1 billion package of tax breaks for hurricane victims. Now lawmakers are struggling to balance the budget, and several fiscally conservative Republicans are upsetting other members of their party as they look to offset some of these costs by freezing discretionary spending for several years.

At a time when lawmakers and citizens alike are now looking beyond recovery efforts and toward long-term solutions in the form of preventative disaster measures, it was particularly appropriate that Representatives Earl Blumenauer (D-OR) and Curt Weldon (R-PA) recently introduced the "Safe Communities Act of 2005" (H.R. 3524). This bill provides grants from the Department of Homeland Security to communities to incorporate disaster mitigation and emergency preparedness into comprehensive land use planning and urban development.
APA has strongly endorsed the legislation and encouraged its inclusion in any Katrina-related legislative package.

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